FMLA / CFRA Leave Violations
The Family and Medical Leave Act and the California Family Rights Act give eligible employees the right to take protected time off without losing their job.
California employees have the right to take protected time away from work for their own serious health condition, to care for a family member, or to bond with a new child. Two laws create that right: the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA). An employer violates these laws by denying leave to an eligible employee, interfering with leave that has already been approved, or punishing someone for requesting or taking it.
Who Qualifies for Protected Leave
FMLA applies to employers with at least 50 employees within a 75 mile radius. CFRA applies to employers with five or more employees, which means most California workers are covered by state law even when their employer is too small for the federal law to reach.
To be eligible under either law, an employee must have worked for the employer for at least 12 months and must have worked at least 1,250 hours during the 12 months immediately before the leave begins.
Eligible employees may take up to 12 weeks of leave in a 12 month period. The leave is unpaid, but the employer must continue group health coverage on the same terms and must return the employee to the same or a comparable position afterward. When both laws apply to the same absence, the 12 weeks generally run at the same time rather than stacking on top of each other.
Case Results
Reasons Leave Is Protected
health condition
serious health condition
adoption, or foster placement
family member's covered military duty
CFRA defines family more broadly than FMLA. State law covers a child of any age, a spouse, a registered domestic partner, a parent, a parent-in-law, a grandparent, a grandchild, and a sibling. Since 2023 it also covers a designated person, meaning someone related by blood or someone whose relationship with the employee is the equivalent of a family relationship. An employer may limit an employee to one designated person per 12 month period. FMLA does not cover siblings, grandparents, grandchildren, or designated persons.
Pregnancy related disability is handled separately under California’s Pregnancy Disability Leave law, which provides up to four months. Because that leave is distinct from CFRA bonding leave, an employee may be entitled to substantially more than 12 weeks in total.
Common Leave Violations
- Telling an eligible employee that they do not qualify
- Miscounting the employee’s hours or the employer’s headcount to avoid coverage
- Failing to notify an employee of leave rights after learning of a qualifying condition
- Demanding medical information beyond what the law allows
- Refusing to reinstate the employee, or returning them to a lesser role
- Counting protected leave as an absence under an attendance or point system
- Discipline, demotion, or termination during leave or shortly after a return
- Pressuring an employee to cut leave short or to keep working while on leave
Pay During Protected Leave
Neither law requires the employer to pay wages during leave. Employees may still receive partial income through State Disability Insurance or Paid Family Leave benefits administered by the Employment Development Department, and in some circumstances accrued paid time off may be used to cover part of the absence. Those wage replacement programs are separate from the job protection the leave laws provide. An employer’s obligation to hold the position does not depend on whether the employee is receiving benefits.
Filing a Claim and Deadlines
CFRA claims are enforced under the Fair Employment and Housing Act. An employee generally has three years from the last violation to file a verified complaint with the California Civil Rights Department, and one year from the date the department issues a right to sue notice to file a lawsuit.
FMLA claims may be filed in court or with the United States Department of Labor, Wage and Hour Division. The deadline is two years from the violation, extended to three years if the violation was willful.
Available Remedies
If a leave violation is proven, available remedies may include:
- 601 S Glenoaks Blvd Ste 201, Burbank, CA 91502
- 3200 Guasti Rd. Suite 100, Ontario, CA 91761